Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Saturday, April 9, 2011

Natural Law's Modern Cousin Germain: Legislating Morality is Right

IT IS QUITE COMMON TO HEAR folks complain and tag as unjust any effort to embody in legislation a particular vision of human flourishing, any effort an bringing legislation that is ordered toward any sort of "comprehensive view" as Rawls might label it. (Of course, these complainants are either maliciously or simply ignorantly-blind to their own "comprehensive views," generally liberal, that motivate their complaints and their own legislative efforts and agendas.) But it is a mistake to believe, or to advance the view, that the mere advocacy of a particular comprehensive view--though it admittedly results in a preference for those whose conceptions are shared, and a frustration of those whose conceptions are opposed--is unjust. However, Finnis rejects the argument in general. "As an argument warranting opposition to such legislation," Finnis observes, "this argument cannot be justified; it is self-stultifying." Finnis, 221. It is self-stultifying (it would, if applied equally by its advocate to his own legislative agenda, tie his hands). It is for that reason that the argument is always applied one-sidedly, in other words, hypocritically. It is pretty clear to whom Finnis refers when he observes:

Those who put forward the argument [the liberals, who else?] prefer a conception of human good, according to which a person is entitled to equal concern and respect and a community is in bad shape in which that entitlement is denied; moreover, they act on this preference by seeking to repeal the restrictive legislation which those against whom they are arguing may have enacted. Do those who so argue and so act thereby necessarily treat with unequal concern and respect those whose preferences and legislation they oppose? If they do, then their own argument and action is itself equally unjustified [under their standards], and provides no basis for political preferences or action [including their own]. If they do not (and this must be the better view), then neither do those whom they oppose.

NLNR, 221-22. Even if framed in terms of "entitlement," or minimum demands of justice, or equality, of liberty, or framed in terms of anyone labeling its opposite as "paternalistic" or "legislating morality," the argument remains--if applied consistently across all conceptions of the good, including the advocate's own--self-stultifying, paralyzing. Under any political program there will be those whose preferential view will be overridden, so the fact that one particular group's desires may not be encouraged but may be inhibited by legislation is not alone sufficient cause to condemn it as unjust. To prohibit, for example, pedophilia (as advocated by NAMBLA, or to prohibit even consensual sex between a child and his teacher, or even honor killings . . . name your vice: doesn't that by definition frustrate a minority of those who think that their flourishing demands the prohibited activity?

The fact is, if one can legitimately frame an argument based upon the reflection, "I wish someone had stopped me from . . . ," then there is room for legislation that prevents such behavior, even if the government gets accused of paternalism. Finnis believes such an argument (one may call it the rueful argument) is rational, legitimate, and, if so, "it follows necessarily that even the most extensive and excessive programme of paternalism might be institute without denial of equal concern and respect to anybody." NLNR, 223.

There are, however, limits. The limits are those relating to the fundamental goods which cannot be directly frustrated by any comprehensive view.
Some ways of pursuing the common good through legislation do indeed err by forgetting that personal authenticity, self-direction, and privacy for contemplation or play or friendship are aspects and important adjuncts of well-being. Paternalistic programmes guilty of this oversight should be criticized for that--a failure in commutative justice--and not for the quite different vice of discrimination, group bias, denial of equal concern and respect, a kind of refined selfishness, a failure in distributive justice. To judge another man mistaken, and to action that judgment, is not to be equated, in any field of human discourse and judgment, with despising that man or preferring oneself.
NLNR, 223.

In short, not all comprehensive views need to be given equal treatment or equal measure under law. There is nothing intrinsically wrong with promoting one's particular, reasoned view of the good, with the caveat that in such promotion of one's good, the common good be held in view, and the recognition that self-determination, personal authenticity, and the basic values of life, knowledge, aesthetic appreciation, play, friendship, religion, and practical reasonableness must not be acted against.

Finnis's view is, then, decidedly not liberal. And so while it may not please the liberal, it does not suffer from the systemic hypocrisy--one could say even schizophrenia--of the liberal who complains if anyone dare advance a comprehensive vision of the good into law (including any inherited one), all the while he works day and night and dismantling the comprehensive view he inherited (or proposed by his political enemy) for a comprehensive view of his own.

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